MBTA seeks dismissal of Sudbury’s lawsuit against Eversouce project

Jonathan Dame Daily News Staff @DameReports

Wednesday

Nov 1, 2017 at 10:36 PMNov 1, 2017 at 10:36 PM

The town of Sudbury “mischaracterized and misapplied” a rarely used legal doctrine when it attempted to block Eversource from leasing an inactive railroad corridor from the MBTA, that state agency said in a legal filing.

The town is attempting to claim that the “prior public use doctrine” should prevent the MBTA from allowing Eversouce to bury a high-voltage transmission line below what was once the Mass Central rail line.

The doctrine comes from Massachusetts common law, meaning it’s not written down in any statute. It states: “public lands devoted to one public use cannot be diverted to another inconsistent public use without plain and explicit legislation.”

In the town’s view, the doctrine should nullify the MBTA’s agreement with Eversource, because there was no special state legislation authorizing the deal. The agency agreed to give Eversouce rights to the property in exchange for $9.3 million over 20 years

But the MBTA accuses the town of inventing a legal standard that does not exist. While the doctrine relates to public uses of land, rights to the railroad are being given to a private company, for a private use, the agency said.

The agency also argues the underground installation of Eversource’s transmission line would not prevent trains from operating there in the future, and points out that the state Legislature has passed laws encouraging public agencies to grant utility easements.

Eversource is seeking approval for its nine-mile, 115-kilovolt project between Sudbury and Hudson from the Energy Facilities Siting Board. Hearings in that case began Tuesday; a decision is expected in April 2018.

The MBTA initially blacked-out portions of its lease with Eversouce in response to a public records request from the Daily News, but later released it in full under pressure from the Massachusetts Secretary of State’s office.

The agreement allows Eversouce to ignore some of the MBTA’s construction protocols. A spokesman for the agency said the waivers would allow for greater flexibility, and made sense because the corridor is inactive.

The MBTA obtained the railroad corridor over two years in the mid-1970s. It signed an agreement with Boston and Maine Railroad that allowed the agency to run passenger and freight trains. Later, it took land by eminent domain in order to provide and expand “mass transportation facilities for pubic use.”

After Sudbury filed its lawsuit against the MBTA in Land Court in September, it asked the siting board to put the permitting review on hold. The hearing officer in the siting board case has yet to rule on the town’s motion.

The town and MBTA were due in Land Court in Boston Wednesday for a case management conference.

Jonathan Dame can be reached at 508-626-3919 or jdame@wickedlocal.com. Follow him on Twitter @DameReports